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Full-Text Articles in Law
Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok
Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok
Articles
Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does …
Management’S Substantive Edges, Alexander A. Reinert
Qualified Immunity’S Flawed Foundation, Alexander A. Reinert
Qualified Immunity’S Flawed Foundation, Alexander A. Reinert
Articles
Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Articles
Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public …
Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger
Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger
Articles
For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, …
The Mysterious Market For Post-Settlement Litigant Finance, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok
The Mysterious Market For Post-Settlement Litigant Finance, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok
Articles
Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that …
The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert
The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert
Articles
In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there are instances …
Solitary Troubles, Alexander A. Reinert
Solitary Troubles, Alexander A. Reinert
Articles
Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.